Workers Compensation Amendment (Transitional) Regulation 2012 (NSW)

2012 No 480

New South Wales

Workers Compensation Amendment

(Transitional) Regulation 2012

under the

Workers Compensation Act 1987

Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Workers Compensation Act 1987.

GREG PEARCE, MLC

Minister for Finance and Services

Explanatory note
The object of this Regulation is to prescribe savings and transitional provisions for the purposes of the Workers Compensation Legislation Amendment Act 2012 and to prescribe other miscellaneous matters in connection with the commencement of that Act, including increases in the maximum legal costs in workers compensation matters.

This Regulation is made under the Workers Compensation Act 1987, including section 280 and Schedule 6.

Published LW 28 September 2012	Page 1
2012 No 480
Clause 1	Workers Compensation Amendment (Transitional) Regulation 2012

Workers Compensation Amendment (Transitional)

Regulation 2012

under the

Workers Compensation Act 1987

1      Name of Regulation

This Regulation is the Workers Compensation Amendment
(Transitional) Regulation 2012.

2      Commencement

This Regulation commences on 1 October 2012 and is required to be published on the NSW legislation website.

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Amendment of Workers Compensation Regulation 2010	Schedule 1
Schedule 1	Amendment of Workers Compensation Regulation 2010

[1]      Clauses 10A and 10B

Insert after clause 10:

10A Prescribed number of hours—calculation of PIAWE

For the purposes of each mention of the prescribed number of hours each week or the prescribed number of hours per week in Schedule 3 (Pre-injury average weekly earnings) to the 1987 Act, the prescribed number of hours is 38 hours.

10B Minimum amount of PIAWE

The amount of $155 is prescribed as the minimum amount applicable to a worker for the purposes of section 44C (7) of the 1987 Act.

[2]      Clause 14 Notice of intention to discontinue or reduce weekly payments

Omit the clause.

[3]      Clause 43 Notice of dispute about liability

Omit the note to clause 43 (1). Insert instead:

Note. Section 74 of the 1998 Act requires the notice to also include a concise and readily understandable statement of the reason the insurer disputes liability and of the issues relevant to the decision (indicating, in the case of a claim for compensation, any provision of the workers compensation legislation on which the insurer relies to dispute liability).

[4]      Clause 77 Penalty notice offences

Omit “Occupational Health and Safety Act 2000” from clause 77 (c) (ii).
Insert instead “Work Health and Safety Act 2011”.

[5]      Schedule 8 Savings and transitional provisions

Insert at the end of Part 1:

3      Weekly payments amendments—other than seriously injured workers

(1) If a claim for compensation in respect of a worker’s injury was made before 1 October 2012, the weekly payments amendments and the relevant transitional arrangements do not apply to the

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compensation payable in respect of the injury until
1 January 2013.

Note. In the case of a claim made on or after 1 October 2012, the weekly payments amendments apply to the claim from when the claim is made.

(2)	This clause does not apply to a seriously injured worker.
(3)	In this clause: relevant transitional arrangements means the provisions of Division 2 (Weekly payments) of Part 19H of Schedule 6 to the 1987 Act.

4      5 year limit on weekly payments

For the purposes of the application of section 39 (Cessation of weekly payments after 5 years) of the 1987 Act, as substituted by the 2012 amending Act, in respect of a claim made before 1 October 2012, no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining the aggregate period in respect of which a weekly payment has been paid or is payable to the worker).

Note. Section 39 limits the payment of weekly payments of compensation to a period of 5 years. This clause ensures that for claims made before 1 October 2012, weekly payments made before 1 January 2013 will not be counted towards the 5 years.

5      Limit on payment of medical, hospital and rehabilitation expenses

In the application of section 59A (Limit on payment of compensation) of the 1987 Act in respect of a claim for compensation made before 1 October 2012:

(a)	the claim is deemed to have been made immediately before 1 January 2013, and
(b)	no regard is to be had to any weekly payment of compensation paid or payable to the worker before 1 January 2013 (for the purpose of determining when a worker ceased to be entitled to weekly payments of compensation).

Note. Section 59A limits the payment of compensation to a period of 12 months after a claim for compensation is made or 12 months after weekly payments of compensation cease. This clause ensures that for claims made before 1 October 2012 the 12 month period will commence no earlier than 1 January 2013.

6      Giving of notice when liability disputed

Despite the substitution of section 74 of the 1998 Act by the 2012 amending Act, that section as in force before 1 October 2012

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continues to apply to a notice given under that section before 1 January 2013 in respect of a claim for compensation made before 1 October 2012.

7      Stay of work capacity decisions during review

(1)	A review by the Independent Review Officer under section 44 of the 1987 Act of a work capacity decision operates to stay the decision but only if the application for review is made before 1 April 2013.
(2)	The decision is stayed from the time the application for review is made until the earlier of:

(a)	the date the worker is notified of the findings of the review (or the application for review is withdrawn), or
(b)	30 June 2013.
(3)	Section 44 (4) of the 1987 Act is deemed to be amended to the extent necessary to give effect to this clause.

8      Awarding of costs by Commission

Division 3 (Special provisions for costs in compensation and damages assessment matters) of Part 8 of the 1998 Act continues to apply (as in force before the amendment of that Division by the 2012 amending Act) to costs in relation to a claim for compensation made before 1 October 2012 if proceedings on the claim are commenced in the Commission before 1 January 2013.

9      Review of work capacity decisions—legal costs of insurers

A legal practitioner is not entitled to be paid or recover any amount for a legal service provided to an insurer in connection with an internal or other review under section 44 of the 1987 Act in relation to a work capacity decision of the insurer.

10      Nervous shock claims

An amendment made by Schedule 3 to the 2012 amending Act extends to a claim for damages in respect of harm arising from mental or nervous shock suffered before 19 June 2012 but does not apply to a claim for damages if the claimant commenced court proceedings for the recovery of those damages before 19 June 2012.

11      Lump sum compensation

(1) The amendments made by Schedule 2 to the 2012 amending Act extend to a claim for compensation made before 19 June 2012,

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but not to a claim that specifically sought compensation under

section 66 or 67 of the 1987 Act.

(2) Clause 15 of Part 19H of Schedule 6 to the 1987 Act is to be read
subject to subclause (1).

12      Employer improvement notices

Part 3 of Chapter 3 of the 1998 Act applies only in relation to a contravention of Chapter 3 of the 1998 Act that occurs after the commencement of that Part.

13      Determination of degree of permanent impairment—Table of Disabilities

(1)	The fact that a worker’s injury was received before the commencement of the 2001 lump sum compensation amendments does not prevent the degree of permanent impairment of the injured worker from being assessed for the purpose of determining whether the worker is a seriously injured worker under Division 2 of Part 3 of the 1987 Act.
(2)	In this clause, the 2001 lump sum compensation amendments means the amendments made by Schedule 3 to the Workers Compensation Legislation Amendment Act 2001 and Schedule 2 to the Workers Compensation Legislation Further Amendment Act 2001.

14      Maximum legal costs

The substitution of Parts 2 and 3 of Schedule 6 (Maximum costs—compensation matters) to this Regulation by the Workers Compensation Amendment (Transitional) Regulation 2012 does not apply in respect of legal services provided before 1 October 2012.

15      1926 Act claims—weekly payments amendments not to apply

The amount of a weekly payment of compensation payable under Division 2 of Part 3 of the 1987 Act in respect of any period of incapacity that resulted from an injury received before the commencement of that Division is be determined as if the weekly payments amendments had not been made.

[6]      Schedule 5 Penalty notice offences

Insert in Part 2 in appropriate order:

section 59D 500

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[7]      Schedule 6 Maximum costs—compensation matters

Omit Parts 2 and 3. Insert instead:

Part 2 Costs

Table 1 General resolution types—costs payable

Item General resolution (for general resolution types Claimant Insurer

Column 1 Column 2 Column 3 Column 4

refer to Table 2) 75% 100% 75% 100%

A	Lump sum compensation	$2,846.25 $3,766.25 $1,811.25 N/A
claim or dispute resolved

• before application
accepted by the Registrar

(Table 2—items 1–4— Claimant: item 2 only— Insurer)

B Lump sum compensation $4,053.75 $5,376.25 $2,932.50 N/A

claim or dispute resolved (or (or

•	after application accepted	$4,600.00	$2,156.25
by the Registrar and up to	where	where
and including the issue of	clause 6 of	clause 6 of
a Certificate of	Part 1	Part 1
Determination	applies)	applies)

(Table 2—items 1–4— Claimant: item 2 only— Insurer)

C	Other compensation claim or	$3,289.00 $4,352.75 $2,696.75 $3,565.00
dispute resolved

• after dispute notice issued
and before application
accepted by the Registrar,
or

• before application
accepted by the Registrar
in relation to a claim for
compensation in respect of
the death of a worker

(Table 2—items 5–16)

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Item General resolution (for general resolution types Claimant Insurer

Column 1 Column 2 Column 3 Column 4

refer to Table 2) 75% 100% 75% 100%

D	Other compensation dispute	$4,450.50 $5,905.25 $3,858.25 $5,117.50
resolved

• after application accepted by the Registrar, and up to and including the initial

teleconference including consequential settlement attendances

(Table 2—items 5–16)

E	Other compensation dispute	$4,887.50 $6,491.75 $4,214.75 $5,589.00
resolved

• after initial teleconference
and up to and including
conciliation conference
including consequential
settlement attendances

(Table 2—items 5–16)

F	Other compensation dispute	$5,307.25 $7,043.75 $4,525.25 $6,008.75
resolved

• following conciliation
conference and up to and
including arbitration
hearing

(Table 2—items 5–16)

Table 2 General resolution types—applicable rate

Item General resolution types Column 1 Column 2

75% 100%

Lump sum compensation resolutions

1	Lump sum compensation for permanent	75%	—
impairment under section 66 of the 1987 Act (excluding any claim for pain and suffering under section 67 of that Act) where:

• the extent of impairment is the only issue, or

• a dispute notice has not been issued

(Claimant only—item A or B of Table 1)

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Item General resolution types Column 1 Column 2

75% 100%

2	Lump sum compensation for pain and	75%	—
suffering under section 67 of the 1987 Act (Item A or B of Table 1)
3	Lump sum compensation under section 16 of	75%	—
the 1926 Act where:

• the extent of impairment (or loss) is the only issue, or

• a dispute notice has not been issued

(Claimant only—item A or B of Table 1)

4	Lump sum compensation for permanent	—	100%
impairment under section 66 of the 1987 Act and for pain and suffering under section 67 of that Act where:

• the extent of impairment and pain and suffering are the only issues, or

• a dispute notice has not been issued

(Claimant only—item A or B of Table 1)

Other compensation resolutions

5	Lump sum compensation for permanent	—	100%
impairment where:

• a dispute notice has been issued, or

• the matter is referred by the Registrar for determination by an arbitrator

(Item C, D, E or F of Table 1)

6	Weekly payments compensation for a period	75%	—
not exceeding 12 weeks in total, excluding interim payment directions under Chapter 7, Part 5, of the 1998 Act (Item C, D, E or F of Table 1)
7	Weekly payments compensation for a period	—	100%
exceeding 12 weeks in total, being a period in respect of which an interim payment direction under Chapter 7, Part 5, of the 1998 Act has
not been made (Item C, D, E or F of Table 1)

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Item General resolution types Column 1 Column 2

75% 100%

8	Termination or reduction of weekly payments	—	100%
compensation (on a review under section 55 of the 1987 Act) (Insurer only—item C, D, E or F of Table 1)
9	Successfully defending an application to	—	100%
terminate or reduce weekly payments compensation (Claimant only—item C, D, E or F of Table 1)
10	Increase in weekly payments compensation	—	100%
(on a review under section 55 of the 1987 Act) (Claimant only—item C, D, E or F of Table 1)
11	Defending an application to increase weekly	—	100%
payments compensation (on a review under section 55 of the 1987 Act) (Insurer only—item C, D, E or F of Table 1)
12	Medical expenses compensation not exceeding	75%	—
$7,500.00, excluding interim payment directions under Chapter 7, Part 5, of the 1998 Act (Item C, D, E or F of Table 1)
13	Medical expenses compensation exceeding	—	100%
$7,500.00 (Item C, D, E or F of Table 1)
14	Compensation in respect of the death of a	75%	—
worker under Part 3, Division 1, of the 1987 Act where:

• the respondent admits liability, and

• there is no dispute regarding dependency

(Item C of Table 1)

15	Compensation in respect of the death of a	—	100%
worker under Part 3, Division 1, of the 1987 Act where:

• the respondent disputes liability, and/or

• the respondent disputes dependency

(Item C, D, E or F of Table 1)

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Item General resolution types Column 1 Column 2

75% 100%

16	Reduction in liability of employer to reimburse	75%	—
the Insurance Fund under section 145 of the 1987 Act by determination of the Commission or agreement after referral (Item D, E or F of Table 1)

Table 3 Special resolution types—costs payable

Item Special resolution types Application on behalf Application on behalf

of claimant of insurer

Column 1	Column 2	Column 3	Column 4
Claimant	Insurer	Claimant	Insurer

A	Interim payment dispute resolved
1 Dispute resolved by $1,897.50 $1,610.00 N/A N/A

direction or agreement,
after application
accepted by the

Registrar

2	If further dispute about	$632.50	$632.50	N/A	N/A
the same claim is resolved by direction or agreement, after application accepted by the Registrar

B	Workplace injury management dispute resolved
1 Dispute resolved by $2,213.75 $1,926.25 $2,213.75 $1,926.25

direction,
recommendation,
determination or
agreement, after
application accepted

by the Registrar

2	If further dispute about	$632.50	$632.50	$632.50	$632.50
the same claim is resolved by direction, recommendation, determination or agreement, after application accepted by the Registrar

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Item Special resolution types Application on behalf Application on behalf

of claimant of insurer

Column 1	Column 2	Column 3	Column 4
Claimant	Insurer	Claimant	Insurer

C	Resolution of other proceedings
1 As ordered or certified Upper Upper Upper Upper

by the Commission or	limit of	limit of	limit of	limit of
the Registrar	$1,265.00	$1,265.00	$1,265.00	$1,265.00

D	Registration of commutation agreement
1 Where agreement $1,725.00 $1,725.00 $1,725.00 $1,725.00

approved by
WorkCover Authority
and registered with the
Registrar (including all
preparation and
documentation in
approved form in
accordance with

Rules)

Item Special resolution types	Claimant
E	Legal service to claimant before dispute notice
1 Where an insurer’s decision on the existing Upper limit of

entitlement to weekly payments is varied to the	$1,265.00
worker’s benefit by an increase of 5% or more in weekly payments as a consequence of a legal service, where it was reasonable to carry out that service

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Item Special resolution types	Insurer
F	Written advice provided at the request of the insurer
1 Where: Upper limit of $948.75

• the legal advice to an insurer is the provision of written advice at the request of the insurer before the issue of a dispute notice, and

• costs are not recoverable under Table 1 in respect of the claim or dispute the subject of that advice

(Subject to clause 7 of Part 1)

G	Advice in respect of complying agreement
1 Where independent legal advice given to a claimant $948.75

in respect of a complying agreement proposed by
an insurer under section 66A of the 1987 Act

(Subject to clause 7 of Part 1)

Table 4 Additional legal services or other factors

Item Additional legal Application on behalf of Application on behalf of

services or claimant insurer

other factors	Column 1	Column 2	Column 3	Column 4
Claimant	Insurer	Claimant	Insurer

1

Appeal against
an arbitral
decision to
Presidential
member

Appeal resolved by (a) Nil if Upper limit Upper limit (a) Nil if

decision of unsuccessful of $2,530.00 of $2,530.00 unsuccessful

Presidential
member

Costs to be as (b) Upper limit (b) Upper limit

ordered or certified	of $2,530.00	of $2,530.00
by the Presidential	if successful	if successful

member and may
encompass all
parties’ costs

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Item Additional legal Application on behalf of Application on behalf of

services or claimant insurer

other factors	Column 1	Column 2	Column 3	Column 4
Claimant	Insurer	Claimant	Insurer

2

Question of law
determined by
the President

Matter resolved by	Upper limit of	Upper limit	Upper limit	Upper limit of
the decision of the	$2,530.00	of $2,530.00	of $2,530.00	$2,530.00

President

Costs to be as
ordered or certified
by the President
and may
encompass all
parties’ costs

3

Appeal against
a medical
assessment
under
Chapter 7,
Part 7, of the
1998 Act

Appeal resolved by (a) Nil if result Upper limit Upper limit (a) Nil if result

the decision of is not more of $1,265.00 of $1,265.00 is not more

Appeal Panel favourable favourable

Costs to be as (b) Upper limit (b) Upper limit

ordered or certified	of	of
by the Commission	$1,265.00	$1,265.00
or the Registrar and	if result is	if result is
may encompass all	more	more
parties’ costs	favourable	favourable

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Item Additional legal Application on behalf of Application on behalf of

services or claimant insurer

other factors	Column 1	Column 2	Column 3	Column 4
Claimant	Insurer	Claimant	Insurer

4	Dispute determined or otherwise resolved after proceedings have been commenced in the Commission
If: Percentage Percentage Percentage Percentage

increase—upper increase— increase— increase—upper

• the

limit of 30% of upper limit of upper limit of limit of 30% of

Commission or

costs at item D, E 30% of costs 30% of costs costs at item D, E

the Registrar

or F of Table 1 at item D, E at item D, E or F of Table 1

certifies the

or F of or F of

matter as

Table 1 Table 1

complex, and

• neither item 6
nor 7 of this
Table also
applies

Item Additional legal services Column 1 Column 2

or other factors Claimant Insurer

5	Dispute determined or otherwise resolved after proceedings have been commenced in the Commission
If: Percentage increase— Percentage increase—

upper limit of 45% of costs upper limit of 45% of costs

• the Commission or the

at item D, E or F of Table 1 at item D, E or F of Table 1

Registrar certifies the

matter as complex, and

•

item 6 or 7 of this Table application

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Item Additional legal services Claimant

or other factors

6          Costs associated with multiple respondents

If the claim or dispute is	Percentage increase—upper limit of 30% of costs
resolved by an award or	payable under Table 1 and items 1, 2 and 3 of this Table
settlement apportioned	Note. The increase does not apply for each additional
between more than one	respondent. Accordingly, 30% is the maximum allowable
respondent	increase notwithstanding the number of respondents.

Note. This allowance does not apply to any resolution that has an increase in fees under item 4 or 5 of this Table.

Item Additional legal services Insurer

or other factors

7          Costs associated with acting for lead scheme agent

If the claim or dispute is (a) Lead scheme agent: percentage increase—upper

resolved by a scheme agent	limit of 30% of costs payable under Table 1 and
on behalf of multiple scheme	items 1, 2 and 3 of this Table

agents (b) Other agents: no costs recoverable

Note. This allowance does not	Note. The increase referred to in paragraph (a) does not apply
apply to any resolution that has an	for each additional scheme agent, and accordingly 30% is the maximum allowable increase notwithstanding the number of
increase in fees under item 4 or 5	scheme agents who are parties to the resolution.

of this Table.

Part 3	Regulated disbursements
Item Disbursement	Applicable provisions

1	Country/interstate loadings	Payable in accordance with the Motor
(including travel and	Accidents Compensation Regulation 2005,
accommodation expenses)	Schedule 1, clause 3 or 4 (as relevant)
Note. Clause 15 of Part A applies for this purpose.
2	Conduct money to comply with	Where the producer is a party other than the
notice for the production of	worker—nil payable
documents	Where the producer is the worker—an amount sufficient to meet the reasonable expenses of complying with the notice is payable

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Item Disbursement Applicable provisions

3

Conduct money to comply with

An amount sufficient to meet the reasonable

direction for the production of

expenses of complying with the direction is

documents

payable
In the case of medical practitioners, the term
“sufficient to meet the reasonable expenses”
is an amount calculated in accordance with
the AMA Resource-Based Relative Value
Scale as in force from time to time
In the case of production by a government
agency—the standard rate applied by that
agency is payable

4

Treating health service

If a claim or dispute is resolved whether

provider’s report

before or after proceedings commenced:
Claimant:

(a)	nil fee payable, unless paragraph (b) applies, or
(b)	fee allowed in accordance with any applicable fee order where:

(i)      request for report made to insurer, and

(ii)    either:

• insurer does not provide report within 14 days, or

• report supplied by insurer does not address the report requirements of the claimant,

and

(iii)    report is served on insurer

Insurer: fee allowed in accordance with any applicable fee order

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Item Disbursement Applicable provisions

5	Report of independent medical	(a)	If a claim or dispute is resolved before
examination by an appropriately	proceedings are commenced—a report
qualified and experienced	of the kind referred to in clause 65 has
medical practitioner in	been served on the other party
accordance with WorkCover	(b)	If a dispute is resolved after
Guidelines	proceedings are commenced—a report
Fee allowed in accordance with	of the kind referred to in clause 65 has
any applicable fee order where	been admitted in the proceedings or
paragraph (a) or (b) opposite	disclosed to an approved medical
applies	specialist
Note. A supplementary report that complies with clause 66 gives rise to a further entitlement to costs under this item, if the supplementary report otherwise satisfies the provisions of this item.

6

Treating health service

If a claim or dispute is resolved whether

provider’s clinical notes and

before or after proceedings commenced:

records

Claimant:

(a)	nil fee payable, unless paragraph (b) applies, or
(b)	payment in accordance with AMA Resource-Based Relative Value Scale as in force from time to time or any applicable fee order (the latter to prevail over the former) where:

(i)            request made to insurer, and

(ii) insurer does not provide
within 7 days, and

(iii)          clinical notes and records are served on insurer

Insurer:

(a)	nil fee payable if clinical notes and records are served by claimant under paragraph (b) above, or
(b)	otherwise, payment in accordance with AMA Resource-Based Relative Value Scale as in force from time to time or any applicable fee order (the latter to prevail over the former)

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Item Disbursement Applicable provisions

7	Fee for the provision of	Upper limit of $1,150.00, on the production
independent financial advice by	of account or receipt
a qualified financial adviser for a commutation by agreement that is approved by the Authority and registered with the Commission